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At the turn of the century, civil justice in rural communities was organized into three non-judicialized instances : 1) the Commissioners' Court, 2) the Court of Justices of the Peace and 3) Conciliation measures. In this paper the institutional characteristics of these three community-type instances are examined. A study of available judicial statistics indicates that the level of activity of these instances went through a pronounced decline during the period between 1880 and 1920, specifically because of the high inflation rate. A brief study of judicial records of the Commissioners' Court of Saint-Raymond de Portneuf makes it possible to draw a profile of those who came under the jurisdiction of this kind of court. An examination of legal commentary and judgements on applications for the writ of certiorari reveals the perception that the legal world then had of rural justice.

In the Farrah case, the Supreme Court of Canada declared unconstitutional a provision in Quebec Transport Act on the grounds that, when read with privative clauses also contained in the Act, it purported to vest in the Transport Tribunal jurisdiction analogous to the Superior Court's jurisdiction to review proceedings before inferior tribunals in the province. Five members of the Court held that, while a provincial Legislature may, by enacting privative clauses, preclude review by the Superior Court of decisions made by a tribunal within its jurisdiction, it cannot transfer the power to review such matters to a provincially-appointed tribunal, since review powers can only be exercised by courts listed in s. 96 of the BNA Act.

In the Province of Quebec, the Provincial Court constitutes one of the most important benches after the Court of Appeal and the Superior Court. At its beginning in 1869, the Provincial Court was termed the Magistrate's Court and its juridiction was very circumscribed. The constitutional problem arising from the existence of such a court was not obvious as it is today. In 1867, when the B.N.A. Act was drafted, the powers concerning the administration of justice in the Province, including the constitution, maintenance and organisation of provincial courts, both civil and criminal, and including procedure in civil matters, were conferred on the provinces by section 92(14). But by section 96, it was provided that the Governor General should appoint the judges of the Superior, District and County courts in each province. These provisions of the B.N.A. Act are extremely confused, so that more than 130 published cases have not succeeded in clarifying definitively the interpretation of sections 96 and 92(14), and such a situation imperils the stability of the judiciary in the Canadian provinces. For the analysis of section 96 of the B.N.A. Act, we must refer to some concepts in English Law about Superior Courts and Inferior Courts. The Magistrate's Court, now the Provincial Court in Quebec, has in fact replaced the Circuit Court whose competence was exercised by judges of the Superior Court appointed by the Federal Government. It is not obvious that in 1867 the Circuit Court was an inferior bench in the mind of the drafters of the B.N.A. Act. At that time the inferior courts in the Province of Quebec were the Commissary Courts and the Justices of the Peace. In 1869 when the Magistrate's Court was established, nobody was wandering about the constitutional question because the jurisdiction of the Court was limited to the collection of municipal and school taxes and to suits actions in which the amount was less than $ 25.00. But in 1888 and 1889 when the Provincial Legislature attempted to replace the Circuit Court in the District of Montreal with the Magistrate's Court, the Federal Government disallowed the laws because judges appointed by the Provincial Government were invested with powers which were up to that time exercised by judges appointed by virtue of section 96 of the B.N.A. Act. The Federal Government was then invited to appoint judges especially affected to the Circuit Court of Montreal, but the Magistrate's Court continued to exist in other judicial districts without extent of jurisdiction. In 1922, the Provincial Legislature tried agin to raise the powers of the Magistrate's Court by transferring to it all the functions exercised by Superior Court judges in the Circuit Court. But at this moment, the Federal Government did not intervene with it's disallowance power. So, once the delay for disallowance had expired, the Provincial Government continued to raise the competence of the Magistrate's court until the abolition of the Circuit Court in 1952. Since 1952, the powers of the Magistrate's Court have not ceased to grow. In 1965, with the adoption of the new Code of Civil Procedure, the name of Magistrate's Court was changed to become the Provincial Court. In spite of it's importance, the constitutional question is not yet settled, and whatever method we use, we cannot justify the constitutionality of the Provincial Court. Several methods have been elaborated by judges to interpret section 96 of the B.N.A. Act. The particularist method consists in appreciating if a board or a bench is invested with powers which, in 1867, were exercised by judges appointed by the Federal Government. If so, the bench is considered inconstitutional. Another method is the functionalist method by which it is presumed that the judicial function should be exercised only by judges appointed by virtue of section 96. This method is not very often used. Finally, there is the globalist method which is more comprehensive but also more abstract, which consists in the recognition of the fact by the growth of its jurisdiction the Provincial Court has become a superior, district or county Court. Whatever method is used, it is very difficult to establish the constitutionality of the Provincial Court in the Province of Quebec. This situation incites a reflexion about the opportunity of section 96 of the B.N.A. ACT which restrains the Province from adopting judicial reforms that are very necessary. If after 110 years, we are not clear about the interpretation that should be given to section 96, we shall never be. In the actual context, the arguments presented by the Fathers of the Confederation for the drafting of section 96 are not very pertinent. If we examine other federal constitutions in foreign countries, it appears that in every case the drafters of such constitutions carefully avoid the situation in which we are placed by section 96 of the B.N. A. Act. Perhaps the better solution for us is the abrogation of section 96 of the B.N.A. act.

This article outlines the difficulties which were felt to exist in the prerogative orders of certiorari, mandamus and prohibition in the United Kingdom, despite important developments which had taken place in their use. It describes in detail the recommendations of the Law Commission and the changes introduced both by Rules of Court and legislation. The former procedures are replaced by an application for judicial review, though the basis upon which relief is granted remains substantially the same. Recent cases show the way in which the new procedure has developed. Distinctions are drawn between the test to be applied on the application for leave and on the final hearing, and between the proceeding by way of judicial review to challenge the acts of public authorities and actions where purely private rights are claimed. This article shows the way in which the possibility of exceptions to this latter distinction has been established and suggests that the ambit of the new procedure is still in course of development.